Citation Nr: 1343451 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-17 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service-connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1975 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was previously before the Board in December 2011, wherein it was reopened and remanded to the RO/AMC for additional development. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed low back disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW The criteria for service connection for low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A May 2005 and May 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The 2005 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also met its duty to assist the Veteran in the development of the claim. Private treatment records, Social Security Administration (SSA) disability records, VA treatment records and examination have been obtained in the development of the claim. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. In the Board's October 2011 remand instructions the RO/AMC was directed to provide the Veteran with a VA examination in conjunction with his claims. The Veteran was afforded a VA examination in November 2011. 38 C.F.R. § 3.159(c) (4). The Board has considered the challenges of both the Veteran and his representative as to the adequacies of his examiner's opinion. The Veteran's representative asserts the rationale for the unfavorable opinion, discussed in greater detail below, is based on a lack of ongoing complaints reported by the Veteran. However, the opinion was based on a thorough review of the claims folders to include a discussion of pertinent service treatment records, a record of the Veteran's reported history and the clinical findings in the examination report. Further, the VA examiner provided a comprehensive statement in support of his conclusions. The Board finds that the medical opinion is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO/AMC has substantially complied with the Board's August 2011 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication of any additional relevant evidence or information that has not already been obtained. The examination report contains sufficient bases and findings for the Board to render a decision in this appeal. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) (West 2002) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. See Combee v. Brown, 34 F.3d 1039 (1994). The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). VA adjudicators are directed to assess both medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). A layperson is generally not capable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden, 381 F.3d at 1167. The Veteran essentially asserts several back injuries in-service caused his current low back disability. As an initial matter, the record shows the Veteran has a current low back disability. The November VA examination diagnosed the Veteran with chronic back pain and osteoarthritis of the spine. The Board notes during active duty in July 1976, the Veteran injured his back during a heavy lifting incident. The Veteran was assessed at time with a muscle strain. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service-connection for a low back condition. Despite showing treatment for back pain in July 1976, the Veteran's Service Treatment Records (STRs) contain no evidence of a diagnosis of chronic back low back disability or osteoarthritis of the spine. A July 1976 thoracic lumbar spinal series x-ray found no radiographic evidence of significant pathology. In August 1976 the Veteran was assessed with an acute thoracic paravertebral muscle movement strain. Later in August 1976 the injury was described as a chronic strain of the "upper middle lower" trapezius and right rhomboid muscles. A record from March 1977 indicates the Veteran had complaints of a back ache for over one year and complaints of back pain in April 1977. The March 1979 exit examination indicated low back pain. The record lacks any medical evidence that links the Veteran's current low back disorder to his military service. The November 2011 VA examiner provided a medical opinion that weighs heavily against the Veteran's claim. The VA examiner opined that it was less likely than not that the Veteran's current diagnosed back condition was incurred in or caused by the claimed in-service injury. The VA examiner noted the STRs did not list treatment for lower back disability or give a diagnosis for the Veteran's lumbar pain. There was no record of the first injury at Ft. Bliss and the retelling of the injuries was considerably different than the recorded STRs. The July 1976 records indicated that he had three weeks of back pain from lifting heavy boxes. The Veteran was examined; an x-ray was obtained of the lumbar area and was negative. The diagnosis was a muscle strain of the right lower, middle trapezius and rhomboid muscles. Other entries later in the STRs indicated the diagnosis was a chronic muscle strain of the right lower, middle trapezius and rhomboid muscles. Since there were so few entries for "actual back pain, but for chronic muscle strain," it was less likely than not that the Veteran's current low back disability was incurred in or caused by the claimed in-service injury. The Board finds it highly pertinent that there is no contradictory medical opinion of record. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claims, and against the reasoned conclusions of the VA examiner; he has not done so. See 38 U.S.C.A. § 5107(a) (it is a claimant's responsibility to support a claim for VA benefits). The Board has considered the Veteran's lay assertions that his current low back condition was caused by his back injury in-service. The Veteran's co-worker and supervisor also submitted statements in support of the Veteran's assertions. The statements support that the Veteran has been consistent in reporting his in-service injury caused his back condition. The Veteran has described a back injury which occurred in Ft. Worth Texas. The STRs document a lifting injury, as described above. The Veteran further described an injury which occurred in Korea that is not documented in the records. The Veteran also reported his 1976 back injury to physicians while seeking SSA and when applying for worker's compensation. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing the symptoms at the time support at later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). However, in this case, the Board concludes that the etiologies of osteoarthritis of the spine and chronic back pain are a complex matter requiring medical expertise. Although the Veteran is competent to report his symptoms of pain, diagnosis of these diseases and determination of their causes requires medical examination, imaging, and detailed assessment of medical history and the Veteran's acquaintances are competent to report what the Veteran has told them. The Board concludes that neither the Veteran nor his acquaintances possess the necessary medical training and is not competent to provide an etiology of the disorders. The evidence indicates the Veteran sought chiropractic treatment from 1986 to 1989. See private chiropractor letter and chiropractic assistant letter received June 2008. The record further indicates the Veteran had a post service back injury October 1989 at work caused by pulling a wire to a cable tray. The Veteran was awarded SSA disability for a primary diagnosis of degenerative disc disease and a secondary diagnosis of spondylosis with an onset date of October 1989, the same month as the work related back injury and well after his military service. The Board acknowledges that the Veteran reported his history of a 1976 in-service back injury while loading a dock and that he developed pain in his back. He had intermittent pain in his low back in the winter months since that time but it was usually short lived, a matter of days, and he responded to chiropractic treatments. However, the only time the pain lasted a long time was after the 1989 injury. Further, this history was considered by the 2011 VA examination. In addition to a 1989 work-related injury, the Veteran's SSA records indicate the Veteran had an automobile accident in September 1995 which he claimed worsened his condition. With regard to the nearly decade-long evidentiary gap in this case between active service and the earliest manifestations of the claimed disorder, the Board finds this gap in time significant and it weighs against the existence of a link between current back disorder and his time in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider a prolonged period without medical complaint when deciding a claim). These later incidents weigh against a finding of a link between the in-service injury and his current low back disability. As noted above in the legal criteria above, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third service-connection element for certain chronic diseases, including arthritis, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has essentially asserted during the appeal period that he has experienced intermittent low back pain since his service period to the present day. See treatment record titled "Physician's 60 day Report" received June 2005. The Board accepts the Veteran's accounts that he injured his back during his period of service. The Board also acknowledges the competence of the Veteran's statements that he has had symptoms involving his back over the years. These are competent recitations of facts as he recalls them. However, the Board places low probative weight on the contentions because for nearly a decade post-service the Veteran did not have complaints or diagnosis of a low back disability. The records indicate treatment of a back complaints beginning at the earliest in 1986 and a back disability which arose after a work-related injury in 1989, as reflected by the worker's compensation and SSA records. Greater probative weight has been placed on the opinion reached by the VA examiner who, after reviewing the Veteran's claims folder, medical history and current examination findings, opined that his current low back disability was not related to service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability. Accordingly, the appeal in the matter must be denied. ORDER Entitlement to service-connection for a low back disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs